Effective date: October 8, 2019
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on megacool.medal.tv. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
What are the basics of using the Service?
You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account. You promise or affirm to provide us with accurate, complete, and updated registration information about yourself. You are responsible for keeping your password secret and secure.
The Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal uses, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law.
Your use of the Services is subject to the following additional restrictions: You represent, warrant, and agree that you will not contribute any Content (defined below) or otherwise use the Services or interact with the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including the Service);
- Violates any law or regulation, including any applicable export control laws;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Megacool account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Copies or stores any significant portion of the Content;
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, code, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise or affirm to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Medal’s) rights.
What about intellectual property rights in the Services?
Will Medal ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Does the Service cost anything?
The cost of using Megacool depends on your usage. See Megacool's pricing here.
How does Medal process my payments?
Payments for the Services are handled by Stripe, Inc. ("Stripe"). Stripe is licensed to provide these services and complies with the relevant laws and regulations. Medal at no time retains any amounts of money owed by the Users. All payments for the Services are subject to the Stripe terms and conditions, which may be amended by Stripe from time to time.
By accepting these Terms, you accept that the payments will be handled by Stripe.
If you choose to pay for the Services via a (credit)card, you authorize Medal to send instructions to the financial institution that issued the card in order to process payments via the card account of the User. This means you give authorization for Stripe to process card payments for the Services on your behalf. You (have) authorize(d) Medal through an opt-in in the registration process or via your account. The payments will be processed monthly and/or yearly, depending on the preference you indicated when signing up. The payment amount will be equal to the pricing of the Services, which you can find here.
What if I want to stop using the Services?
Medal is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Medal has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at [email protected] – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
What about data and the European GDPR rules on data?
Because the services that Medal offers uses data, the European GDPR rules apply to us and we take data protection very seriously.
We have a section about GDPR and data protection which is set out in Schedule 1 at the end of these terms, and which explains our and your obligations. Both you and Medal have certain requirements under data protection laws and agree to comply with them in accordance with Schedule 1.
What else do I need to know?
Warranty Disclaimer. Neither Medal nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, including without limitation any Resulting Data, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Medal or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY MEDAL (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MEDAL (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY YOU TO MEDAL IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Medal, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Medal’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND MEDAL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Medal may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Medal agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Medal, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Medal, and you do not have any authority of any kind to bind Medal in any respect whatsoever. You and Medal agree there are no third party beneficiaries intended under these Terms.
The parties have agreed that in order for each party to comply with its obligations under the EU General Data Protection Regulation 2016/679 that the following terms shall be included in the Terms.
1 DATA PROTECTION
Each party will comply with their respective obligations under the Data Regulation (as defined below). Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with this Schedule 1.
1.2.1 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor” and “Processing” shall have the meanings given to them in the GDPR.
1.2.2 “Data Regulation” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.2.3 “EEA” means the European Economic Area;
1.2.4 “End Users” means the individuals who have downloaded and are using your mobile game application;
1.2.5 “EU Data Protection Laws” means the EU Directive 95/46/EC and EU Directive 2002/58/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.2.6 “GDPR” means the EU General Data Protection Regulation 2016/679; and
1.2.7 “Subprocessor” means any person (excluding an employee of the relevant party) appointed by or on behalf of either party to Process Personal Data on behalf of such party.
The parties acknowledge that they shall be joint Controllers in respect of the Processing of Personal Data relating to End Users. In particular:
1.3.2 Megacool also determines certain purposes of the Processing, including Processing of the technical and meta-data described above to understand how End Users make use of the Software and to fix errors in, and improve, the Software (“Megacool Purposes”);
1.3.3 you determine all other means and purposes of the Processing by deciding how to integrate the Software into your game, which features of the Software to enable to collect and Process personal data, and how to use that personal data including for the purpose of enabling your End Users to share recordings of their gameplay.
Provided that obligations under this clause 1.4 shall apply to Megacool only in respect of the Megacool Purposes and Processing undertaken by Megacool, in respect of any Processing under this Agreement for which you and Megacool are joint Controllers:
1.4.3 Each party shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to Personal Data, ensuring in each case that access is:
188.8.131.52 strictly limited to those individuals who need to know and/or access the relevant Personal Data; and
184.108.40.206 as strictly necessary for the purposes of this Agreement and to comply with Data Regulation in the context of that party's duties.
1.4.4 Each party shall ensure that all individuals referred to in Clause 1.4.3 are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Security and Confidentiality of Data
1.4.5 Each party shall in relation to Personal Data, implement appropriate technical and organisational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, each party shall take into account:
220.127.116.11 the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing; and
18.104.22.168 the risk of varying likelihood and severity for the rights and freedoms of natural persons.
1.4.6 In assessing the appropriate level of security, each party shall in particular take account of the risks that are presented by Processing, including from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
1.4.7 With respect to a proposed Subprocessor, each party shall:
22.214.171.124 before the Subprocessor first Processes Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by applicable Data Regulation; and
126.96.36.199 ensure that the arrangement with such a Subprocessor, is governed by a written contract including terms meet the requirements of Article 28(3) of the GDPR; and
188.8.131.52 Be responsible for its Subprocessors’ breach and violation of the GDPR.
Data Subject Rights
1.4.8 Each party shall fulfil their obligations to respond to requests to exercise Data Subject rights under the Data Regulation. Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with this clause.
Personal Data Breach
1.4.9 Each party shall:
184.108.40.206 notify the other party without undue delay upon becoming aware of a Personal Data Breach; and
220.127.116.11 provide the other party with sufficient information to allow it to meet any obligations to report or inform Data Subjects or Supervisory Authorities of the Personal Data Breach under or in connection with the Data Regulation;
18.104.22.168 meaningfully consult with the other party in respect of the external communications and public relations strategy related to the Personal Data Breach;
22.214.171.124 insofar as permitted by the Data Regulation, not issue a press release or communicate with any member of the press in respect of the Personal Data Breach, or notify any data protection regulator of the Personal Data Breach without having obtained prior written consent of the other party (such consent not to be unreasonably conditioned, withheld or delayed).
1.4.10 The notification set out in Clause 126.96.36.199 above, shall as a minimum:
188.8.131.52 describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
184.108.40.206 describe the likely consequences of the Personal Data Breach; and
220.127.116.11 describe the measures taken or proposed to be taken to address the Personal Data Breach.
1.4.11 You shall co-operate with Megacool and take such reasonable commercial steps as are directed by Megacool to assist in the investigation, mitigation and remediation of each Personal Data Breach.
1.4.12 Neither party shall transfer Personal Data to countries outside of the EEA in breach of applicable Data Regulation. The parties hereby enter into the Standard Contractual Clauses, attached in Exhibit A, with respect to Personal Data transfers out of the EEA (for the purpose of which Megacool shall be the “data importer” and you shall be the “data exporter“).
You warrant and undertake that any Processing under this Agreement, undertaken by Megacool acting as a Processor on behalf of you acting as a Controller, and in accordance with the Terms, complies with the Data Regulation.
To the extent that Megacool is a Controller and you are a Processor, (or, as applicable, Megacool is a Processor and you are a Subprocessor) you will:
1.6.1 Process Personal Data only in accordance with Megacool’s documented instructions, including the Terms, and including in respect of the deletion or return of Personal Data;
1.6.2 assist Megacool in all respects necessary to enable or assist Megacool to comply with Data Regulations including by notifying Megacool where you believe that an instruction of Megacool in connection with Processing Personal Data does not comply with Data Regulation;
1.6.3 make available to Megacool all requested information in respect of Personal Data, including, on at least 14 days prior written notice and during normal business hours, permitting Megacool, or any of its auditors or advisors, to attend your premises in order to inspect your systems and records to the extent determined by Megacool to be necessary to demonstrate your compliance with this clause, and the Terms; and
1.6.4 comply with the above clauses 1.4.2, 1.4.3, 1.4.4, 1.4.5, 1.4.6, 1.4.7, 1.4.9, 1.4.10, 1.4.11 and 1.4.12.
You will not do or omit to do any act which may cause Megacool to be in breach of any of its obligations under the Data Protection Laws.
In the event of any claim arising from the breach of this Schedule 1 or violation of the Data Protection Laws by either party, the limitations of liability set forth in the Terms will not apply.
Exhibit A to Schedule 1 – Standard Contractual Clauses (Controllers)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to controllers established in third countries which do not ensure an adequate level of data protection the data exporter and the data importer HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex B.
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
(i) the data protection laws of the country in which the data exporter is established, or
(ii) the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data, or
(iii) the data processing principles set forth in Annex A. Data importer to indicate which option it selects: (iii) Initials of data importer: MEDAL;
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
(ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that: (i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a); (ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import; (iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses; (iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or (v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
Annex A to Exhibit A: Data Processing Principles
- Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
- Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
- Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
- Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
- Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
- Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
- Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
- Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and (ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties. or
(b) where otherwise provided by the law of the data exporter.
Annex B to Exhibit A: Description Of The Transfer
The personal data transferred concern the following categories of data subjects: (i) End Users; and (ii) Any individual accessing and/or using Megacool’s software services through data exporter’s customer account (“Data Exporter Account User”).
Purposes of the transfer(s)
The transfer is made for the following purposes: (i) In respect of Data Exporter Account User data: to enable the data exporter to integrate the Software into the data exporter’s mobile applications. (ii) In respect of End User data: to enable End Users to record and share recordings of their gameplay via Megacool’s software; to enable Megacool to understand how End Users make use of the Software so Megacool can improve and correct errors in the Software.
Categories of data
The personal data transferred concern the following categories of data: recordings of gameplay by End Users, and accompanying metadata, information regarding when those recordings are accessed, and data exporter data.
Data protection registration information of data exporter (where applicable)
The data exporter will make available to all End Users and Data Exporter Account Users, and keep up to date, all applicable data protection registration information of the data exporter.
The personal data transferred may be disclosed only to the following recipients or categories of recipients: the data exporter, Megacool, the End Users to whom the personal data relates, to Subprocessors of either Megacool or the data exporter and otherwise only to members of the corporate group of either party.
Contact points for data protection enquiries
Patrick Rietbroek, DPO - Medal B.V.
The data exporter will make available to all End Users and Data Exporter Account Users, and keep up to date, contact information for the relevant contact point of the data exporter in connection with data protection enquiries.